Under section 15 of the Equality Act 2010, an employer will discriminate against an employee if the employer:
- treats the employee unfavourably because of something arising in consequence of the employee’s disability; and
- cannot show that the treatment was ‘a proportionate means of achieving a legitimate aim’.
In City of York Council v Grosset, the Employment Appeal Tribunal considered whether an employer who knew about a disabled employee’s disability, but did not know how it affected him, discriminated when it dismissed him on the grounds of misconduct. Mr Grosset was a teacher at a school operated by the City of York Council. Mr Grosset suffers from cystic fibrosis, which the Council was aware of. His workload increased and he struggled to cope with the additional demands which were placed upon him. He began to suffer from stress, which exacerbated his cystic fibrosis.
During this period, Mr Grosset took two lessons of 15 and 16 years olds, during which he showed them the 18-rated film “Halloween”. When the head teacher found out, he was dismissed for gross misconduct. The panel who determined the outcome of the disciplinary hearing did not accept that Mr Grosset’s decision to show the film was a momentary lapse of judgment and noted that Mr Grosset did not appear to show any remorse. Although the medical evidence which was available at the disciplinary hearing did not suggest a link between the misconduct and the disability, the evidence which was available at the Tribunal Hearing suggested that there was a link. Mr Grosset brought claims of unfair dismissal and disability discrimination.
The Tribunal dismissed the unfair dismissal complaint, as the evidence at the disciplinary hearing did not suggest any link between the misconduct and the disability. However, it upheld the disability discrimination claim, taking into account the later medical evidence. The Council appealed to the EAT, on the basis that the Council did not know there was any link between Mr Grosset’s misconduct and the disability at the time of his dismissal.
The EAT upheld the Tribunal’s finding of disability discrimination. The Council did not have to know that there was a link between the misconduct and Mr Grosset’s disability. The only knowledge that was required in order for the employer to be liable for disability discrimination, was knowledge that the employee was disabled and the Tribunal had been permitted to conclude that the decision to dismiss was not proportionate.
This case shows that an employer can inadvertently discriminate against a disabled employee, if it reasonably concludes that the reason for the employee’s dismissal (or other unfavourable treatment) is not related to his disability, if it later transpires that it was a link.